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Mueller v. Eucenham

Decided: November 12, 1954.

HAROLD G. MUELLER, PLAINTIFF-APPELLANT,
v.
DANIEL EUCENHAM, DEFENDANT-RESPONDENT, AND DANIEL EVERNHAM, JR., AN INFANT BY HIS GUARDIAN AD LITEM, DANIEL EVERNHAM, AND DORIS EVERNHAM, AN INFANT BY HER GUARDIAN AD LITEM DANIEL EVERNHAM, INTERVENING-COUNTERCLAIMANTS-RESPONDENT



Eastwood, Goldmann and Schettino. The opinion of the court was delivered by Goldmann, J.A.D.

Goldmann

Plaintiff appeals from an order of the Monmouth County District Court (1) permitting defendant (wrongly designated in the original complaint as Eucenham) to counterclaim, and (2) permitting defendant's infant children, Daniel Evernham, Jr. and Doris Evernham, by their father as guardian ad litem , to intervene and file their claims against plaintiff.

The action grew out of a collision on April 10, 1953 involving plaintiff's and defendant's automobiles. Defendant's children were passengers in his car. Plaintiff was at that time insured against property loss under a collision policy issued by the Service Fire Insurance Company. The company paid him $656.40 for the damage to his car; plaintiff in return gave the company his "loan receipt" whereby it was subrogated to his rights against defendant for the recovery of the sum it had paid under the policy. By that receipt plaintiff agreed to present his claim to defendant promptly and, if necessary, commence and diligently prosecute an action against him in his own name. He also appointed the "managers and/or agents" of the company "his agent(s) and attorney(s)-in-fact," to collect the claim and to begin, prosecute, compromise or withdraw, in his name but at the company's expense, any and all legal proceedings it might deem necessary to enforce the claim, such proceedings to be under the exclusive control and direction of the company.

On November 20, 1953 the company's attorney filed a complaint in plaintiff's name in the Monmouth County District Court seeking judgment against defendant for the damage done to plaintiff's automobile. Defendant was served the next day and entered his appearance December 8, 1953. On or about December 30, 1953 plaintiff moved from New Jersey to Virginia where he is presently residing.

Daniel Evernham individually and as guardian ad litem of his two infant children then filed a complaint in the Monmouth County Court on January 18, 1954 seeking judgment for personal injuries and damage to his automobile, for injuries

suffered by the children, and for damages per quod. Plaintiff could not be served personally because of his removal from the State. Evernham then attempted to file a so-called "counterclaim" in the Monmouth County District Court action, on behalf of himself and the children. Actually, it was (1) a counterclaim for his own injuries and property damage, as well as for damages per quod by reason of the injuries to his children, and (2) a claim by the children as intervenors for personal injuries suffered because of plaintiff's alleged negligence. Evernham's counsel sent this "counterclaim" to plaintiff's then attorney who, on April 8, 1954, acknowledged service as of time and without objection. The district court action was thereupon, pursuant to R.R. 7:6-1(b), transferred to the Superior Court by a consent order entered by a Law Division judge. At this juncture of the proceedings substituted counsel for plaintiff prepared an order, to which defendant's attorney consented, dismissing the "counterclaim" without prejudice and without costs because plaintiff's original counsel "inadvertently" acknowledged service of that pleading. The consent order was entered May 6, 1954; it remanded the complaint to the Monmouth County District Court "for further procedure therein, in accordance with the rules and practice of that court."

Counsel for defendant then moved on notice for an order permitting the infants, appearing by their father as guardian ad litem , and defendant individually, "to intervene and counterclaim" against plaintiff in the original action, it being represented that their respective claims and the main action had a common question of law or fact. Attached thereto was a copy of the "counterclaim" proposed to be filed. The motion was contested, and after argument the district court judge entered the order of May 12, 1954 here on appeal, granting the relief sought.

The "counterclaim" filed pursuant to the May 12 order was in six counts seeking judgment as follows: (1) $50,000 for personal injuries suffered by defendant Evernham; (2) $1,000 for property damage to his automobile; (3) $25,000 for personal injuries suffered by his son, Daniel Evernham,

Jr.; (4) $5,000 for medical expenses and loss of earnings by the father; (5) $25,000 for personal injuries suffered by his daughter, Doris Evernham; and (6) $5,000 for medical expenses and loss of earnings by the father. Thus, the "counterclaim" consists of a counterclaim by Evernham individually seeking $61,000 total damages, and a claim by the intervening infants against plaintiff Mueller seeking $50,000 total damages.

The May 12 order of the Monmouth County District Court was interlocutory. R.R. 2:2-3(a) provides that an appeal may be taken to this court from an interlocutory order "(3) Determining that the court has jurisdiction over the subject matter or the person." In objecting to the entry of the order under appeal plaintiff strenuously urged that the district court had no jurisdiction over his person or the subject matter -- the latter for the reason that the amount in controversy under the counterclaim and the ...


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